ECHR Application: 23 -10-2014

European Court of Human Rights

Facts

1. The applicant claimed the British Broadcasting Corporation had discriminated against him for upholding the very values the Corporation insists employees follow. These established ethical and editorial standards exist to promote the BBC’s public purposes and are known to employees and the public they serve as the “BBC Values”. The ethos enshrined by these values is a significant reason for the respect and trust the BBC attracts, at home and abroad. In 2003 after extensive consultation with staff the BBC produced a written statement of the Values for the first time defining “a shared set of values that everyone in the organization understands, believes in and adheres to.” [1]

2.  Under UK law – the Equality Act 2010 and previously the Employment Equality (Religion and Belief) Regulations 2003 –certain “philosophical beliefs” attract protection from discrimination. This is consonant with the Human Rights Act 1988 which codifies the protections in the European Convention on Human Rights into United Kingdom law.

3.  In February 2011 a Pre-hearing Review – chaired by Employment Judge Pauline Hughes – considered whether the applicant’s commitment to the BBC Values could be regarded as a philosophical belief. At the request of the Tribunal the applicant produced a ‘Statement of Philosophical Belief” in which he explained why his belief in the values and public purposes of the BBC met the criteria for such a belief. Under the head “Public Service Broadcasting and BBC values” the applicant cited Lord Reith, the first general manager of the BBC and Mark Thompson who was then Director General. [2]  The applicant said: “The Reithian Mission to inform, educate and entertain has guided the BBC for more than 90 years. Mark Thompson clearly demonstrates a continuing belief in the singular importance of public broadcasting and the values of the BBC that support such a belief.”[3]The Tribunal applied the criteria set out in the leading case of Grainger PLC v Nicholson [2010] IRLR 4 and found that the applicant’s belief amounted to a philosophical belief protected in law.[4] The BBC’s legal representative argued its aims and values were really no more than a mission statement i.e. a goal to aspire to rather than a belief, and that it would be absurd to extend protection to beliefs in the mission statements of employers.[5] Judge Hughes rejected this argument. She said that whilst the BBC’s public purposes might fairly be characterised as idealistic in nature and/or as a “mission statement”, it did not negate the fact that these purposes arise because of a shared belief in the importance of public service broadcasting in a democratic society.[6] The Tribunal described the applicant’s belief “in short” as “a belief in the higher purpose of public service broadcasting”.[7] It noted that it was the applicant’s position that everybody working for the BBC understood references to “BBC Values” were references to a shared belief system.[8] The Tribunal ruled the applicant could proceed with his complaints of discrimination, harassment and unfair dismissal and allocated 24 days for trial

4. In February 2012 a Tribunal chaired by Employment Judge Hilary Harding heard the applicant’s complaints. The BBC witnesses said they followed the BBC Values but could not have discriminated as they could not have known of the applicant’s belief in the BBC’s higher purpose.[1] The applicant submitted the BBC itself encourages a belief in its higher purpose by insisting all employees follow the BBC Values.[2]

5.  In its judgment the Tribunal makes no reference to this submission or to the applicant’s extensive cross-examination of the witnesses intended to expose the contradiction of their claim and to establish a prima facie case of discrimination. It found the applicant had failed to put to any of the witnesses that they knew of his belief and had discriminated against him because of his belief. The Tribunal considered this “a striking omission”. It found the applicant had also:

  • Failed to make a single complaint of discrimination over a period of five years of alleged harassment.
  • Failed to explain what he meant by the BBC Values in his complaints.
  • .Gave evidence that was inconsistent and at times very hard to follow.

For these reasons the Tribunal drew an adverse inference against the credibility of the applicant which it said underpinned many of its findings of fact.[3] None of the 98 findings favoured the applicant.

6.  At the trial the applicant explained the serious nature of his complaints and the context in which they were made.[4] He referred to a complaint of discrimination read out to the Tribunal and put before it in writing.[5]

7. The Tribunal concluded that these grievances did not amount to specific complaints of discrimination. It said: “He does, occasionally, make reference to the “BBC Values”, in the context of there being a lack of BBC values applied to him, or as he stated at his appeal against dismissal, that he was dismissed for upholding the BBC Values, but the evidence before us from the respondent was that the BBC Values are a mission statement incorporating the following behavioural characteristics; Trust – the BBC is independent, impartial and honest. Audiences – are at the heart of what the BBC does. Quality – the BBC takes pride in delivering quality and value for money. Creativity – is the lifeblood of the BBC. Respect –each other and celebrate diversity so everyone can give their best. Working together – one BBC where great things happen. That these were the BBC Values was not challenged by the claimant and it seems to us therefore that the BBC Values are distinct from the belief which the claimant holds in the higher purpose of public service broadcasting which was found to be a protected belief.” [6]

8. This conclusion is based on a finding formally recorded at paragraph 7.8 of the judgment. “Like many corporate organisations the BBC has a set of values, or a mission statement, which it publishes and expects its employees to follow.”[7] The Values are again recorded as above. The Tribunal does not cite any evidence and gives no reasons for this finding.

9.  A further reason for disregarding the complaints made by the applicant was that he had not explained to the BBC in these complaints what he meant by the BBC Values.[8]

10. In his final skeleton argument, the BBC’s legal representative referred to the applicant’s submission ( paragraph 4 above) and said: “The Claimant went through the “BBC’s values”, which effectively amounts to a mission statement and is very similar to the “BBC’s values” set contained in the identity cards of most BBC employees – see paragraph 65 of Jonathan Aspinwall’s statement. These “BBC values” are highly commendable; and most BBC employees would be proud to subscribe to these values. If the main protagonists did subscribe to these BBC values, as they contend they did, they could not have discriminated or harassed the Claimant because of his belief in “BBC values”. The respondent’s legal representative also argued: “All of the respondent witnesses gave evidence that they were unaware of the Claimant’s asserted philosophical belief until the Tribunal proceedings. The short point is that if that is correct they could not have discriminated or harassed the claimant because of his asserted philosophical belief at the time.” [9]

11. At paragraph 65 Mr. Aspinwall sets out the values statement as it appears on identity cards and on the BBC website.[10]

  • Trust is the foundation of the BBC: we are independent, impartial and honest.
  • Audiences are at the heart of everything we do.
  • We take pride in delivering quality and value for money.
  • Creativity is the lifeblood of our organisation.
  • We respect each other and celebrate our diversity so that everyone can give their best.
  • We are one BBC: great things happen when we work together.

In this statement the personal commitment of employees is emphasized by the use of “We” and “our”. In the statement of values presented in the judgment as seen above the Tribunal replaces these words with “BBC” and omits the cardinal principle that the BBC is founded on Trust.

12. An application for leave to appeal against the judgment, documented in detail, was made on grounds of bias and perversity. The applicant argued that the adverse inference was drawn without considering his submission that the respondent must have known of a belief which it encourages and by unfairly excluding his complaints.[11] The appeal was dismissed on 3 July 2012 by His Honour Judge Peter Clark.[12]

13.  On 21 August 2012 Judge Harding considered the issue of costs. The applicant argued that the witnesses claim to be unaware of his belief was implausible and that his submissions had been ignored. He again put these submissions before the Tribunal.[13] The judgment of 24 August 2012 awarded maximum costs of £10 000 to the BBC.[14]

14.  In his second application for leave to appeal against the judgment of 4 April 2012 the applicant argued there was a conflict between the findings made by Judge Hughes and Judge Harding relating to his philosophical belief. He said his submission that the witnesses must know of his belief had been ignored.[15] The application was refused by the Honourable Lady Smith on 9 October 2012.[16]

15. On 28 September 2012 the Tribunal gave reasons for its judgment on costs. Judge Harding said the applicant had been misconceived in bringing his claim of discrimination on the grounds of belief from the outset.[17] He had also ignored letters in which the BBC warned him it would seek costs if he pursued his case.[18] The Tribunal made no reference to the applicant’s submissions about the BBC Values put before it for a second time. However Judge Harding said she had not challenged the conclusion of Judge Hughes. A significant issue which had not been dealt with at the Pre-hearing Review was whether the BBC knew of the applicant’s belief. She said that Judge Hughes in her judgment had specifically commented that this was an issue to be decided.[19]

16. In his first application for leave to appeal against the costs judgment the applicant again argued that the BBC witnesses must have known of his belief and that his submission to this effect should have been considered. He explained how the BBC Values became a written document.[20] The appeal was dismissed by the Honourable Mr. Justice Langstaff on 5 March 2013. He said there was no evidence the witnesses knew of the applicant’s belief. The applicant should have realised he could never establish his claim. [21]

17.  In May 2013 the BBC published its “Respect at Work Review”. In the Review – endorsed by the BBC Management Board – the BBC said the Corporation “must live and breathe its Values”[22] which “represent a distillation of its essential mission and vision and should be at the heart of everything the BBC does and the way in which it conducts itself.”[23] It said its managers and staff “strongly believe in the BBC Values”.[24] The applicant sought to have the judgment of 4 April 2012 reviewed in the light of this new and credible evidence. Although the applicant provided the complete report he specifically referred to statements made in the first 13 pages of the report.[25] Judge Harding dismissed the new evidence as irrelevant because the applicant was relying on a 61 page report which considered the extent to which the Value of Respect was upheld at the BBC.[26] She also said it was not in the interests of justice for a review to be conducted where new evidence is provided more than a year after the judgment was promulgated.[27]

18. Judge Harding said there was no conflict between her finding and that of Judge Hughes. “For the avoidance of doubt EJ Hughes at the Pre-hearing Review found that the claimant did have a protected philosophical belief – namely a belief in the higher purpose of public service broadcasting and that when he referred to “BBC Values” this is what he meant. EJ Harding’s Tribunal, whilst acknowledging the claimant’s protected philosophical belief, found as a fact that the respondent’s witnesses understood the term to mean something different – namely the term referred to the BBC’s mission statement, known as the BBC Values, which emphasized the importance of certain matters such as Respect and Trust.”[28]

19.  In his second application for leave to appeal against the costs judgment of 24 August 2012 the applicant again argued that the BBC must have known of his belief. He raised the failure to give adequate and intelligible reasons as a point of law. He said there were exceptions to the rule on challenging witnesses when full notice of an intention to impeach their testimony had been given, where the witness testimony is incredible and where the witnesses had a full opportunity to put their case.[29] The appeal was dismissed on 30 May 2013 by His Honour Judge Serota QC as an abuse of process by reason of its prolixity and complete lack of merit.[30]

20.  On 30 October 2013 the applicant appeared before Lady Stacey at the Employment Appeal Tribunal to make oral representations for leave to appeal against both judgments. He raised 10 points of law in his skeleton argument[31] supported by substantial and persuasive legal authority.[32] A point relating to the admissibility of new evidence could not be heard. Lady Stacey found the applicant was seeking to attack the findings of fact made by the Employment Tribunal. “As appeal lies to the Employment Appeal Tribunal on an error of law only, his applications are refused.”[33]

21.  Application for leave to appeal was made to the Court of Appeal on the same grounds[34] and submissions.[35] On 24 April 2014 permission was refused by Lord Justice Christopher Clarke. He said the Employment Tribunal had found against the appellant after exhaustive consideration and analysis of the facts.[36]

22.  The application was renewed at an oral hearing on 9 July 2014. The applicant relied on the same submissions made to Lord Justice Clarke. He also argued there could not have been exhaustive consideration and analysis of the facts where no facts existed, that due process had been abandoned and he had been denied a fair trial.[37] Lord Justice Underhill found that although the BBC Values were pervasive at the Corporation it was not possible for managers to know whether any individual employee held a philosophical belief in the Values or merely regarded the Values as a mission statement.[38] Justice Underhill refused the application for leave to appeal. No appeal may be made against this decision to the Supreme Court of the United Kingdom.”[39]

Complaints /Statements of Violations

23. The Tribunal’s pivotal conclusion (paragraph 7 above) is that the BBC Values are a mission statement distinct from the applicant’s philosophical belief – a belief in the higher purpose of public service broadcasting as described by Judge Hughes at the Pre-hearing Review. In reaching her finding Judge Hughes applied the law – the criteria set out in Grainger PLC v Nicholson [2009] – to the BBC’s asserted statement of purpose. She found the BBC’s claim that its aims and values are a mission statement, i.e. a goal to aspire to rather than a belief, was irrelevant. What mattered was whether the substance of those aims and values met the test for a philosophical belief. She rejected the argument that it would be absurd to extend protection to beliefs in the mission statements of employers like the BBC or the National Health Service.

24.  Judge Harding’s conclusion is based on her finding recorded at paragraph 7.8 of her judgment (paragraph 8 above) that the BBC Values are a mission statement. She does not apply the criteria in Grainger but uses her discretion instead. She gives no reason for this finding and cites no evidence. She changes the values statement of the BBC from a personal and collective pledge of loyalty to the BBC’s ideals to a corporate statement. She gives no explanation of why it was necessary to present the Values in this fashion. It is reasonable to infer this was done to strengthen the impression of a mission statement. She does not say what she means by a mission statement but the term has been consistently used to mean a goal to aspire to rather than a belief. Essentially Judge Harding rejects the finding of Judge Hughes that the BBC Values constitute the substance of a philosophical belief. The BBC Values are a “mission statement” rather than a belief. Subscribing to the BBC Values cannot amount to a belief – or a belief shared by employees – in the BBC’s public purposes.

25.  Judge Harding says (paragraph 7 above) her conclusion that the BBC Values are a mission statement incorporating behavioural characteristics is based on “the evidence before us from the respondent”. However Judge Harding does not refer to any supporting evidence. She does not say what she means by behavioural characteristics but merely cites the altered values statement as evidence. None of the BBC witnesses in their written statements or their testimony, nor the BBC’s legal representative claimed the BBC Values are behavioural characteristics. None of the witnesses claimed the BBC Values are a mission statement.

26.  To support this completely arbitrary finding Judge Harding advances a circular argument. “The evidence before us from the respondent was that the BBC Values are a mission statement incorporating the following behavioural characteristics… That these were the BBC Values was not challenged by the claimant and it seems to us therefore that the BBC Values are distinct from the belief which the claimant holds in the higher purpose of public service broadcasting which was found to be a protected belief.” There is however no evidence from the respondent. Judge Harding has not established on the basis of evidence or by applying the law that the BBC Values are a mission statement. The reasoning is clearly unsound. Judge Harding is simply accepting the assertion of the respondent that the BBC Values effectively amount to a mission statement (paragraph 10 above).

27.  Judge Harding has responded to the applicant’s argument that her judgment conflicts with that of Judge Hughes on two occasions. In September 2012, giving reasons for her judgment on costs, she said there was no contradiction because Judge Hughes herself had specifically commented in her Pre-hearing Review judgment of 29 March 2011 that the respondent’s knowledge of the applicant’s belief was an issue which still needed to be decided (paragraph 15 above). There is no record of such an explicit comment in the judgment. Moreover this does not resolve the conflict between the judgments. Judge Hughes found the BBC Values constitute the substance of a philosophical belief on the basis of the criteria in Grainger. Judge Harding found the Values are a mission statement, a goal to aspire to rather than a belief, without resort to the law or evidence.

28.  In July 2012, refusing an application for review of her judgment of 4 April 2012 based on new evidence, Judge Harding explained why there was no conflict between her finding and that of Judge Hughes. She acknowledged (paragraph 18 above) Judge Hughes’s finding that the applicant regarded the BBC Values as expressive of the Corporation’s higher purpose. “The claimant did have a protected philosophical belief – namely a belief in the higher purpose of public service broadcasting and that when he referred to “BBC Values” this is what he meant.” However her Tribunal “found as a fact that the respondent’s witnesses understood the term to mean something different – namely the term referred to the BBC’s mission statement, known as the BBC Values, which emphasized the importance of certain matters such as Respect and Trust.”[40] This conflicts with her original finding that the BBC Values are a mission statement.

29.  The term mission statement does not appear once in eleven witness statements produced by the BBC. The witnesses at no stage of their cross-examination gave any indication they understood the Values any differently from the applicant and the Tribunal raised no concerns. The witness Kevin Silverton said “I understand BBC values to be the core principles of the BBC business… we would welcome and encourage any member of staff who wanted to promote these values.”[41] Mr. Jonathan Aspinwall said “As BBC employees, we all follow the BBC values; it is what we do and all programmes are made on the basis of the BBC Values.[42] He also said, “It is a fundamental part of all BBC employees’ roles to follow the BBC Values…”[43]The BBC’s legal representative merely asserts in his final skeleton argument that the BBC Values are effectively a mission statement. Neither he nor the witnesses at any point argued the Values are unrelated to the BBC’s public purposes. Judge Harding’s reformulated finding, like the original, has no evidential basis.

30.  However this finding that the witnesses had a different understanding of the Values resolves the contradiction in their defence. They can claim to subscribe to the BBC Values without being aware of the shared belief in the BBC’s higher purpose which the Values promote. The Tribunal can find the applicant’s complaints were meaningless unless he explained what he meant by the BBC Values to BBC managers. The BBC website says, “Our mission, vision, and values inform the work of the BBC and are how we promote our public purposes”[44] but the applicant was expected to know BBC managers have a different view.

31.  The finding that the witnesses could not have known of the applicant’s belief was established on the basis that their claim had not been challenged by the applicant. The applicant’s submission (paragraph 4 above) made in his skeleton argument exchanged before the trial was ignored. There is no mention of the applicant’s extensive cross examination of the witnesses in which they confirmed they subscribed to the BBC Values and that the Values existed to serve the BBC’s public purposes. None of the witnesses said they regarded the BBC Values as a mission statement or thought the Values were unrelated to the BBC’s public purposes. They had full notice of the applicant’s argument; and every opportunity to show why their claim to subscribe to the Values but remain unaware of a shared belief was not a contradiction. The witnesses were not ambushed.

32.  The applicant’s failure to challenge provided the major ground for the drawing of an adverse inference against the applicant’s credibility which overwhelmed all evidence in his favour, even that given by the witnesses. The drawing of such an inference was supported by the applicant’s failure to complain and to explain based on the finding that the witnesses regarded the BBC Values as a mission statement unrelated to the BBC’s public purposes. As shown there is no evidential basis for this finding. The respondent’s legal representative did not argue in his first skeleton argument that the BBC Values are a mission statement.[45] In addressing the applicant’s submissions (paragraph 10 above) the respondent’s representative merely repeats the contradictory claim made by the witnesses. He does not address the applicant’s argument that subscription to the BBC Values requires employees to consciously promote the BBC’s public purposes and they must therefore be aware of a shared belief.

33. From 2005 when the applicant first raised reservations about breaches of the Values until 2010 when he was dismissed, no manager suggested that the applicant held an unorthodox view of the Values. There was no reason to believe that the BBC’s comprehensive value system as publicly described on its websites, articulated by its Director Generals and daily applied at the BBC had ceased to exist. Yet the Tribunal found the applicant had acted unreasonably in bringing his claim of discrimination and ignoring costs warning letters in which the BBC denied it could have known of his belief. His claim of discrimination – based on what the BBC says about its Values –was found to be misconceived from the start.

34.  English law allows for the admissibility of new evidence not previously available, which is credible, relevant and likely to have had significant influence on the judgment. In May 2013 the BBC published its Respect at Work Review, endorsed by the BBC Management Board. Statements in the Report vindicated the applicant’s claim that the BBC regards its Values as sacrosanct, that these values epitomize and promote the BBC higher purpose and that all BBC employees believe in these Values. The applicant sought a review of the judgment in the light of this new evidence.

35.  Judge Harding accepted this information was new and credible but considered it irrelevant. She said the applicant “seeks to rely on a 61 page report published by the respondent in May 2013. He submits that this report amounts to new evidence relevant to the issues in his case…In any event the report adduced as new evidence has no obvious relevance to the claimant’s tribunal case. We are told on page 6 that the scope of the report is to consider the extent to which ‘the BBC Value of Respect is upheld at the BBC.’[46] This is a straw man argument. The applicant has not sought to rely on the report as a whole although it says the “forms of unacceptable behaviour which are the focus of the Review are harassment and bullying.”[47] The applicant clearly said he relied on statements in the first 13 pages of the Review (paragraph 17 above). The Tribunal’s reasoning is clearly insufficient and unsound.

36.  Judge Harding said the BBC report had no relevance to her finding that the witnesses understood the BBC Values as a mission statement unrelated to the BBC’s public purposes.[48] The Review says the Corporation “must live and breathe its Values” which “represent a distillation of its essential mission and vision” and that its managers and staff “strongly believe in the BBC Values”. The applicant submits the new evidence was relevant in that it contradicted Judge Harding’s central finding and confirmed the accuracy of the applicant’s submissions about the BBC Values.

37.  However Judge Harding says the Review “supports the respondent’s case, because it confirms that one of the BBC Values is Respect, as was described by the respondent’s witnesses, and was found as a fact to be the case.”[49] The respondent’s case according to the Tribunal is that the BBC Values are a mission statement unrelated to the BBC’s higher purpose. The Report merely confirms Respect is a BBC Value –a fact which is not in dispute. It does not prove the respondent’s case. This is circular and unsound reasoning. Clearly the rule of law is undermined when a claimant cannot rely on a Tribunal to properly examine the most credible evidence.

38.  The applicant has briefly summarised the nature of the applications made for leave to appeal and the reasons given for their refusal. The applicant submits that the Employment Appeal Tribunal generally failed to examine his submissions properly. The application made at the hearing before Lady Stacey on 30 October 2013 is illustrative (paragraph 20 above). It was based on established points of law supported by substantial and persuasive legal authority. The applicant is aware that only brief reasons need be given. However, almost all of Lady Stacey’s six page judgment is taken up with roughly summarising the applicant’s submissions without a single specific comment on their merits or deficiency. In the final paragraph she declares none of the grounds of appeal have any prospect of success, that effectively no errors of law were raised and that the applicant was attempting to attack the findings of the Tribunal.[50] The applicant submits that simply recording his submissions and broadly declaring all points of law to be an attack on the Tribunal’s findings of fact does not satisfy the requirement that submissions are properly examined and sufficient reasons given. There is nothing to suggest the Employment Appeal Tribunal has done anything other than endorse the findings of Judge Harding. At the least Lady Stacey could have addressed the issue of fact finding without evidence – an approach that makes trials unnecessary.

39.  Much the same submissions were made to the Court of Appeal.[51] The application was refused on 24 April 2014 by Lord Justice Christopher Clarke.[52] These submissions were then considered by Lord Justice Underhill at a hearing on 9 July 2014. The applicant argued that Lord Justice Clarke was wrong to find there had been exhaustive consideration and analysis of the facts when the absence of facts was in fact in issue.[53] He submitted that on the facts due process had been utterly abandoned and he had been denied a fair trial.[54]

40.  Lord Justice Underhill refused the application. He said the Tribunal was right in concluding the witnesses and their employer could not discriminate if they were unaware of the applicant’s belief.[55] The applicant’s essential answer, he said, was that it was impossible that the individuals in question could have been unaware of his belief in BBC values given that they are pervasive in the BBC. But Lord Justice Underhill did not believe it was arguable that a generalised assumption that senior management employees will subscribe to BBC values can be equated with the knowledge that a particular employee has a philosophical belief in those values. Although the Values constituted a philosophical belief to the applicant “to others it might indeed be no more than their employers mission statement about the values that they were expected to observe at work.”[56]

41.  “To subscribe to” is generally understood as expressing or feeling agreement with an idea or proposal – in this case the idea that a formalised set of values must be adhered to by all employees in order to promote the BBC’s public purposes. Judge Hughes found that even if the BBC’s legal representative chose to label the Values a mission statement this did not change the fact that the Values – on the criteria in Grainger – constituted the substance of a philosophical belief. Clearly, at the least, all employees collectively agree the Values exist to promote the BBC’s higher purpose. Simply denying the Values constitute a belief does not change this factual situation.

42. Lord Justice Underhill says this cannot be equated with the knowledge that the applicant held a philosophical belief. Such specific knowledge of a philosophical belief, rather than awareness of a belief, is required to make discrimination possible. Whether a claimant holds a philosophical belief however requires a Tribunal to confirm the belief is genuinely held. Until then, if Lord Justice Underhill’s reasoning is followed, employers simply cannot discriminate.

43. The criteria set out in Section 24 of the Employment Appeal Tribunal’s judgment in Grainger PLC v Nicholson [2010] IRLR 4 are as follows:

  1. The belief must be genuinely held.
  2. There must be a belief and not, as in McClintock, an opinion or viewpoint based on the present state of information available.
  3. It must be a belief as to a weighty and substantial aspect of human life and behaviour.
  4. It must attain a certain level of cogency, seriousness, cohesion and importance.
  5. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

44.  It is the applicant’s submission that the requirements under 2-5 must satisfy objective criteria. Whether the belief is genuinely held is relevant to deciding if the protection of the law should be extended to a claimant. In allowing the complaints to proceed to trial Judge Hughes noted meeting the “test” merely establishes that there is a protected characteristic, such that a discrimination complaint may be brought. The real battle is to prove discrimination on the grounds of the belief relied on.[57]

45. Lord Justice Underhill specifically says Judge Hughes’s finding that the BBC Values are capable of constituting the subject matter of a philosophical belief was based on the applicant’s own evidence particular to himself. This was not a finding that subscribing to those Values would be a philosophical belief in every case.[58] This is quite different from the requirement to satisfy a Tribunal that a belief is genuinely held. If Lord Justice Underhill is correct, “evidence particular to the claimant” is also relevant in deciding whether the substance of a philosophical belief exists.

46. Lord Justice Underhill says this is what Judge Harding had in mind in refusing to review her judgment.[59] However this is quite different from Judge Harding’s reasoning. She did not find that managers could not be expected to know the applicant held a philosophical belief. She found the witnesses understood the Values differently; as a mission statement unrelated to the BBC’s public purposes. Judge Harding rejected statements about the BBC Values endorsed by the BBC’s Management Board as irrelevant because they appeared in a BBC report investigating bullying, sexual harassment and the abuse of managerial power[60] at the Corporation; not because it was impossible for the BBC to know whether an employee held a philosophical belief until this was determined by a Tribunal.

47. A fair trial requires that the evidence and the submissions of the parties are properly considered, the law is applied and applied consistently, findings are based on evidence, intelligible and adequate reasons are given for conclusions and the principle of legal certainty observed. The applicant has drawn attention to breaches of all these procedural standards.

48. The judgment of Judge Hughes on which the applicant relied was rejected by Judge Harding who imposed the finding of her Tribunal. Moreover this finding was later modified to block new evidence, shifting the goalposts yet again. The law was not applied or applied inconsistently to the detriment of the applicant. Judge Harding did not apply Grainger and the respondent suffered no adverse inference for failing to challenge the applicant’s assertion that the BBC itself encourages a belief in its higher purpose. Crucial submissions made by the applicant were ignored. The evidence has not been properly examined – the statement of Values was altered and misrepresented by the Tribunal; findings were made unsupported by evidence defeating the purpose of a trial; claims that the witnesses did not make were found to be fact, without any supporting evidence; the Employment Tribunal gave irrational and unintelligible reasons for its findings. The Employment Appeal Tribunal has dismissed persuasive points of law as just an attack on Judge Harding’s findings allowing the applicant’s case to be decided arbitrarily and capriciously. The respondent meanwhile publicly contradicts the Employment Tribunal’s central finding on which it won its case.

49. Lord Justice Underhill effectively finds that the applicant had no case to begin with as knowledge of a philosophical belief is required for discrimination to be possible. He therefore dismisses all the applicant’s grounds of appeal as largely irrelevant. His reasoning conflicts with that of Judge Harding which conflicts with that of Judge Hughes. It also conflicts with the judgment of Lady Stacey and the reasoning of Lord Justice Clarke who basically upheld the Tribunal’s findings of fact.

50. On Lord Justice Underhill’s reasoning the “test” in Grainger is not exhaustive and cannot be relied on. There is little practical value in attempting to establish a philosophical belief on the basis of an ambiguous test as protection from discrimination after the relevant time. However signatories are obliged under Article 1 of the Convention to secure protection for secular, philosophical beliefs. If Lord Justice Underhill is right the United Kingdom has failed to do so and is in breach of its treaty obligations. This seriously undermines efforts to entrench the rights protected under the Convention. The situation, at the least, requires urgent clarification.

[1] “Making It Happen,” Creativity, and Audiences: A BBC Case Study: Susan Spindler and Caroline Van Den Brul – NHK Broadcasting Studies 2006-2007 No.5, para 21, p28

[2] Statement of Philosophical Belief, 14 February 2011, para 2, p 622

[3] Ibid, para 5(ii), p 625

[4] Judgment of the Employment Tribunal on a Pre-Hearing Review, 29 March 2011, para 15, p 616

[5] Ibid para 9, p 614

[6] Judgment of the Employment Tribunal on a Pre-Hearing Review, 29 March 2011, para 18, p 617

[7] Ibid, para 8, p 614

[8] Ibid, para 21, p 618

[9] Respondent’s Skeleton Argument, 28 February 2012 para 45, p 485

[10] Witness Statement, Jonathan Aspinwall, para 65, p 602

[11] Grounds of Appeal, para 2(i) and (ii), pp 282-288

[12] Decision, Judge Peter Clarke, Employment Appeal Tribunal, 3 July 2012, p 276

[13] Skeleton Argument, Costs Hearing, 21 August 2012, para 5 (b), pp 259-264

[14] Judgment on a Costs Hearing, 24 August 2012, p 254

[15] Grounds of Appeal, paras 4-6, pp 226-232

[16] Decision, Lady Smith, Employment Appeal Tribunal, 9 October 2012, p 215

[17] Reasons for Judgment, Judge Harding, 28 September 2012, paras 15-16, p 249-250

[18]Reasons for Judgment, Judge Harding, 28 September 2012, para 2, p 244; para 19, p 251

[19] Ibid, para 15, p 249

[20] Appeal Against Judgment on a Costs Hearing, para 1, pp 196-200

[21] Decision, Justice Langstaff, Employment Appeal Tribunal, 5 March 2013, p 193

[22] Respect at Work Review, 2 May 2013, para 2, p 88

[23] Ibid, para 5, p 90

[24] Ibid, para 1, p 95

[25] Application for a Review, 3 July 2013, para 1, p 83

[26] Reasons (for refusing) Application for a Review, Judge Harding, 22 July 2013, para 5, p 81

[27] Ibid, para 4, p 81

[28] Reasons (for refusing) Application for a Review, Judge Harding, 22 July 2013, para 6, p 81

[29] Appeal Against Judgment on a Costs Hearing, (31 March 2013) para 6 (iii)-(vi), pp 179-183

[30] Decision, Judge Serota, Employment Appeal Tribunal, 30 May 3013, pp 156-157

[31] Skeleton Argument, Rule3(10) Hearing, 30 October 2013, pp 53-66

[32] Submissions, Rule3 (10) Hearing, 30 October 2010, paras 9-19, pp 69-79

[33] Judgment, Lady Stacey, Employment Appeal Tribunal, 5 December 2013, para 13, p 50

[34] Grounds of Appeal, 24 April 2014, pp 15-16

[35] Skeleton Argument, 24 April 2014, pp 17-41

[36] Reasons, Justice Christopher Clark, Court of Appeal, 2014, pp 12-14

[37] Oral Argument, Court of Appeal, 9 July 2014, pp 9-11

[38] Judgment, Lord Justice Underhill, 9 July 2014, para 13, p 7

[39] Order, Court of Appeal, 9 July 2014, p 1

[40] Reasons (for refusing) Application for a Review, Judge Harding, 22 July 2013, para 6, p 81

[41] Witness Statement, Kevin Silverton, 18 November 2011, paras 23, p 609

[42] Witness Statement, Jonathan Aspinwall, 18 November 2011, para 65, p 602

[43] Ibid, para 68, p 602

[44] Skeleton Argument, Application for Leave to Appeal, 24 April 2014, para 6, p 20

[45] Respondent’s Skeleton Argument, 2 February 2011, pp 541-568

[46] Reasons (for refusing) Application for a Review, Judge Harding, 22 July 2013, paras 3- 5, p 81

[47] Respect at Work Review, 3 July 2013, para 9, p 92

[48] Reasons (for refusing) Application for a Review, Judge Harding, 22 July 2013, para 6, p 81

[49] Ibid

[50] Judgment, Employment Appeal Tribunal, 5 December 2013, para 13, p 50

[51] Skeleton Argument, 24 April 2014, pp 17-41

[52]Reasons, Lord Justice Christopher Clarke, Court of Appeal, 24 April 2014, p 12

[53] Oral Argument, 9 July 2014, para 3, p 9

[54] Ibid, para 15, p 11

[55] Judgment, Lord Justice Underhill, 9 July 2014, para 12, p 7

[56] Judgment, Lord Justice Underhill, 9 July 2014, para 13, p 7

[57] Judgement on a Pre-hearing Review, Judge Hughes, 29 March 2011, para 19, p 618

[58] Ibid, para 14, p 7

[59] Judgment, Lord Justice Underhill, 9 July 2014, para 14, p 7

[60] Respect at Work Review, 2 May 2013, para 3, p 88

 

 

 

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4 thoughts on “ECHR Application: 23 -10-2014

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